헌법재판소의 사형제 결정과 사회과학적 논증: 사형의 억제효과를 중심으로

After the first decision on capital punishment in 1996, the death penalty system of Korea was upheld by the Constitutional Court once again in 2010 on the ground that it does not violate Article 37 Section 2 and Article 10 of the Constitution. The reasoning of the Constitutional Court in these cases was chiefly of legal science, but rarely of social science. From the perspective of social scientists there could be found, if any, arguments which fall short of satisfaction, especially on the issue about the deterrent effect of capital punishment. The author in this paper tried to supplement the reasoning of the Court with a new social scientific evidence on the deterrent effect of death penalty in Korea. For this purpose data on murder rate, execution rate, prosecution rate, GDP growth rate, urbanization rate, and Gini coefficient were collected and analysed for the time span of 1965-2009. The results of these analyses were: firstly, there could not be found any meaningful effect of capital punishment on murder rate; secondly, the most effective variable seems to be Gini coefficient, indicating that the inequality of income distribution among citizens is positively related to the occurrence of murder. The former of these two conclusions was also supported by a recent empirical study on the effect of death penalty utilizing statistical time-series analysis. Nobody can say for certain whether the conclusion of the Court could be changed if the social science arguments of this kind were submitted during the hearing of death penalty cases. It is beyond doubt, however, that social scientific evidences should be considered more actively by the Constitutional Court of Korea in the future.